253 F.3d 761 (4th Cir.

2001)

LINDA J. MYERS, Plaintiff-Appellant,

v.
HERCULES, INCORPORATED; PROVIDENT LIFE &
ACCIDENT INSURANCE COMPANY, Defendants-Appellees.
No. 99-2252

UNITED STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT
Argued: January 25, 2001
Decided: June 8, 2001
Amended June 27, 2001

Appeal from the United States District Court for the Western District of
Virginia, at Roanoke. Samuel G. Wilson, Chief District Judge. (CA-98308-7)COUNSEL ARGUED: F. Rodney Fitzpatrick, F. RODNEY
FITZPATRICK, P.C., Roanoke, Virginia, for Appellant. David Edward
Constine, III, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for
Appellees. ON BRIEF: Richard F. Hawkins, MAYS & VALENTINE,
L.L.P., Richmond, Virginia, for Appellees.
Before MICHAEL and MOTZ, Circuit Judges, and Robert E. PAYNE,
United States District Judge for the Eastern District of Virginia, sitting by
designation.
Reversed by published opinion. Judge Michael wrote the opinion, in
which Judge Motz and Judge Payne joined.
OPINION
MICHAEL, Circuit Judge:

Because of a debilitating back condition, Linda Myers, an employee of

Hercules Incorporated, was awarded long-term disability (LTD) benefits under
the company's income protection plan (the Plan). After Myers had received
benefits for over seven years, Provident Life and Accident Insurance Company,
the claims fiduciary under the Plan, terminated her benefits, deciding that she

was no longer disabled. Myers sued Provident and Hercules under ERISA S
502(a)(1)(B), 29 U.S.C. S 1132(a)(1)(B), alleging that Provident had
wrongfully terminated her benefits. After a bench trial the district court
concluded that there was sufficient evidence to support Provident's
determination that Myers was no longer disabled. As a result, the district court
held that Provident did not abuse its discretion in terminating Myers's benefits.
After reviewing the record, we conclude that Provident's decision was neither
reasoned nor supported by the evidence (all three doctors who examined Myers
opined that she remained totally disabled). We therefore reverse.
I.
2

The facts are settled. Myers worked as a radiology technician for Hercules at an
ammunition plant in Radford, Virginia, from 1986 to 1989. In her position
Myers performed x-ray and lung capacity examinations, maintained radiology
files, and conducted certain laboratory examinations. The physical demands of
the job required Myers, among other things, to lift and carry film materials and
gallon quantities of chemicals, to pull and push x-ray equipment into position,
and to bend or squat in retrieving and storing film files. In addition, Myers
regularly carried film files up and down a flight of stairs that led to the
basement storage area.

Myers, who was born in 1941, has a long history of severe back trouble. She
had surgeries (laminectomies) in 1981 and 1982 to alleviate the pain. During
the three years Myers worked at Hercules, she had three more back surgeries
(all laminectomies). After the fifth laminectomy in February 1989 Myers did
not return to work at Hercules because she could not handle the physical
demands of her job. In October 1989 she applied for LTD benefits under the
Hercules Plan. Under the Plan a participant who is "not able to perform [her]
job" is "considered totally disabled" and is eligible for LTD benefits for two
years. After this initial two-year period a participant is "considered totally
disabled" and entitled to continuing benefits until age 65 if she is "not able to
engage in any employment for wage or profit for which [she is] reasonably
qualified by training, education, or experience."In her application for LTD
benefits Myers stated that she could not do her job because back pain and lack
of strength impaired her ability to walk, change positions (for example, bend or
squat), lift objects, and position the x-ray equipment. In support of her
application Myers submitted medical reports and opinions from her attending
physician, Donald Yoder, M.D., and her neurosurgeon, Harold Young, M.D.
Both doctors concluded that Myers's back condition, which was marked by
severe pain, rendered her totally disabled from performing any job. Drs. Young
and Yoder both noted that Myers could not sit, stand, or walk, or alternate

sitting and standing, for even an hour at a time. Finally, the LTD application
form asked Myers to list any skills that she had "as a result of prior
employment, training, or education." She listed "typing, p.c. operations,
operation manuals writing, [and] research technician."
4

Myers was awarded LTD benefits the same month she applied, October 1989.
The following month Myers, as required by the Plan, applied for disability
benefits under the Social Security Act. (Her LTD benefits would be reduced by
the amount of any Social Security award.) On May 25, 1990, an administrative
law judge awarded Myers Social Security disability benefits, concluding that
Myers's severe back impairment prevented her from "perform[ing] sustained
work activity at any exertional level." In the meantime, in April 1990, Myers
had back surgery for a sixth time. This last operation included a lower back
arthrodesis procedure (a fusion) and major instrumentation.

In 1990, the year following the award of Plan benefits to Myers, Hercules
entered into a contract with Provident under which Provident would administer
the Plan and provide insurance coverage for disability benefits awarded under
the Plan. Hercules, however, remained liable to pay the disability benefits for
participants, such as Myers, who became disabled before July 1, 1990. The
contract named Provident "Claims Fiduciary" under the Plan. The Plan gives
the Claims Fiduciary the following authority with respect to claims decisions:

The Claims Fiduciary [shall] have the sole and exclusive discretion and power
to grant and/or deny any and all claims for benefits, and construe any and all
issues relating to eligibility for benefits. All findings, decisions, and/or
determinations of any type made by the Claims Fiduciary shall not be disturbed
unless the Claims Fiduciary has acted in an arbitrary and/or capricious manner.

Under the Plan, LTD benefits end once a participant is "no longer disabled."
Thus, a participant who receives benefits must periodically submit statements
of "proof of continuance of disability" to the Claims Fiduciary. Myers
submitted these statements, which included reports from Dr. Young, to
Provident on a yearly basis. From 1990 through 1993 Dr. Young stated in his
reports that while Myers's pain problem was improving, she remained totally
disabled from performing any job. In 1994 Dr. Young noted that Myers had
some leg pain and numbness and that she could not sit or stand for more than
two hours total during a work day. In 1995 Dr. Young reconfirmed that Myers
was totally disabled from performing any job. In her 1995 statement Myers said
for the first time that her condition allowed her to do "light activities,"
specifically, to use a stationary exercise bike and swim. In 1996 Dr. Young said
once again that Myers was totally disabled. In his diagnosis the doctor noted

that Myers had "chronic back pain"; however, in reporting her subjective
symptoms, the doctor said that she had "no pain at this time." In describing the
extent of Myers's disability, the doctor said that she was completely incapable
of lifting, stooping, bending, crawling, and prolonged standing.
8

The 1996 report from Dr. Young led Provident to reevaluate whether Myers
was still totally disabled. In November 1996 Provident sent Myers a
rehabilitation survey form. The information Provident sought would assist it in
determining whether Myers was an appropriate candidate for the Plan's
rehabilitation program, which is aimed at returning eligible participants to the
workplace. Myers responded to the rehabilitation survey in March 1997. With
respect to her tolerance for physical activity, Myers reported that she could sit
or stand for only one hour at a time. She could, however, walk two miles and
lift six to ten pounds. According to Myers, she could not return to her old job at
Hercules because she was unable to do "the standing, lifting, carrying and
reaching [that was] necessary." Indeed, Myers felt that she could not work at
any job because "considera[ble] time is needed daily for rest of my back."
Moreover, Myers reported that extended activity or overexertion caused pain
and numbness in one leg. After receiving the completed survey from Myers,
Provident did not suggest rehabilitation.

Provident next arranged for Myers to have an independent medical

examination. The examination was conducted by Dr. Kerry Donnelly on April
17, 1997. Dr. Donnelly examined Myers and concluded that she suffered from "
[f]ailed back syndrome, with good result from L4 to sacrum anthrodesis, but
with persistent pain and functional limitations." Myers was "otherwise in
excellent health," according to this doctor. In a form assessing Myers's
"physical capacities," Dr. Donnelly noted that in a single eight-hour work day
Myers could stand for five hours, walk for six hours, sit for four hours, or drive
for four hours. Dr. Donnelly concluded his report as follows:

10

It is my opinion that this patient remains disabled from her work as an x-ray
technician. She has no other training or education that would enable her to
easily perform any type of work outside of this field. I think that given the fact
that she has recurrent back and leg symptoms, with prolonged walking, sitting
or strenuous activity, that this patient should continue to be considered
permanently disabled from this problem.

11

In the final step of reevaluating Myers's disability, a Provident representative

interviewed her over the telephone on May 21, 1997. When the representative
called Myers's residence, she answered the phone, "Promoline." Myers
explained that Promoline is the name of her husband's business and that she

always answers the phone that way. Myers told the representative that she was
able to climb stairs and do light housekeeping work, but she said that her
activities were limited because of the pain in her back.
12

Provident terminated Myers's LTD benefits on June 2, 1997. Provident based its
decision on the independent medical report of Dr. Donnelly and the annual
reports of Dr. Young, her neurosurgeon. The company interpreted Dr.
Donnelly's report to mean that Myers is "physically able to work full time" and
Dr. Young's reports to mean that Myers is "limited only from significant lifting,
stooping, bending, crawling and prolonged standing." Provident concluded that
Myers's education, skills, and experience gave her the capability to perform
several jobs, such as receptionist, bank teller, teacher's aid, and "general clerk."
In a supplemental letter to Myers's lawyer, Provident expanded on its
interpretation of Dr. Donnelly's report. Provident implicitly acknowledged that
Dr. Donnelly found Myers to be permanently disabled. Nevertheless, Provident
contended that Dr. Donnelly was not aware that Myers had job skills other than
those required for a radiology technician. Provident focused on Dr. Donnelly's
statement that Myers had "no other training or education that would enable her
to easily perform any type of work outside of[the radiology] field." Of course,
in her initial LTD application in 1989 Myers said she had the following skills:
typing, p.c. operations, operation manuals writing, and research technician.
Provident concluded that if Dr. Donnelly had been aware that Myers possessed
these skills, he would have found that she was not totally disabled. In other
words, Provident read Dr. Donnelly's report as indicating only that Myers was
totally disabled from performing her prior job as a radiology technician. In
support of this interpretation Provident contended that Dr. Donnelly had said
that Myers was capable of standing for five hours during a work day and sitting
for four hours. According to Provident, this meant that Myers could sit and
stand "for over a full 8 hour work day."

13

Myers asked Provident's ERISA Committee to review the termination of her

LTD benefits. During the review process Myers acknowledged, through her
lawyer, that she had the skills and education "to perform numerous sedentary
positions." She insisted, however, that she lacked the physical capacity to
perform a sedentary job on a full-time basis. She pointed out that she attempted
to do two hours of clerical work each morning at home for her husband's
business. This, however, required her to lie down for an extended period before
she could attempt any further work. Myers submitted additional reports from
Drs. Young and Yoder to the review committee. Dr. Young confirmed that
Myers "has been disabled to return to her former occupation as X-ray
Technician since 1992 due to severe spine disease." Dr. Young added that
Myers "must limit her standing, sitting, and driving to one hour intervals" and

that she must lie down for one hour intervals three times a day. Dr. Yoder said
that Myers"is unable to sit for any extended period of time." Moreover, Dr.
Yoder said that she is unable to stay in one position for more than thirty
minutes without completely changing positions. "This would include sitting to
standing, standing to walking, walking to sitting," the doctor explained. For its
part in the review process, Provident asked one of its medical consultants,
William C. Dowell, M.D., to review Myers's file and offer any comments. Dr.
Dowell said only the following:
14

It would seem that although [Myers] has significant orthope- dic limitations,
she would be a good candidate for voca- tional rehabilitation since she is in
excellent health otherwise. A sedentary occupation would be probable.

15

Provident's ERISA Committee conducted its review and upheld the decision to
terminate Myers's LTD benefits.

16

Myers then sued Provident and Hercules in federal court under ERISA S 502(a)
(1)(B), 29 U.S.C. S 1132(a)(1)(B), alleging the wrongful termination of her
benefits. After a bench trial the district court concluded that Provident did not
abuse its discretion in deciding to terminate Myers's benefits because the
decision was supported by sufficient evidence. "Specifically," the court said,
"Dr. Donnelly's Physical Capacities form, Dr. Dowell's report, and Myers's
transfer- able employment skills sufficiently support Provident's decision to
terminate Myers's LTD benefits." Myers now appeals.
II.
A.

17

We start off with the standard of review. Provident, as Claims Fiduciary under
the Hercules Plan, had "the sole and exclusive discretion" to make decisions
about eligibility for benefits. As a general proposition, a fiduciary's
discretionary decision will not be disturbed if it is reasonable, even if we would
have reached a different conclusion. See Firestone Tire & Rubber Co. v. Bruch
, 489 U.S. 101, 115 (1989). To assist courts in determining the reasonableness
of a fiduciary's discretionary decision, we have developed a (non-exclusive) list
of eight factors that may be considered. See Booth v. Wal-Mart Stores, Inc.,
210 F.3d 335, 342-43 (4th Cir. 2000). Only two of the factors are implicated in
this case: whether the fiduciary's decision- making process was reasoned and
principled and whether the fidu- ciary's conclusion was supported by the
evidence before it. See id.

B.
18

We now turn to whether Provident's discretionary decision to terminate Myers's

LTD benefits was reasonable. We begin with the Plan language. A Plan
participant, like Myers, is "considered totally disabled" and entitled to LTD
benefits if she is" not able to engage in any employment for wage or profit for
which [she is] reasonably qualified by training, education, or experience."
Provident concluded that Myers was able to work full time in a sedentary job
such as receptionist, bank teller, teacher's aid, or "general clerk."1

19

Provident contends first (and foremost) that its decision to terminate Myers's
LTD benefits is supported by the physical capacities assessment form filled out
by Dr. Donnelly. Dr. Donnelly indicated that in a single eight-hour work day
Myers could stand five hours, walk six hours, sit four hours, or drive four
hours. Provident picked two of these categories, standing and sitting, and
concluded that Myers could alternate between standing and sitting straight
through an eight-hour work day and beyond. This is an unreasonable reading of
the form. When the hours Dr. Donnelly listed for each of the activities are
added together, they total nineteen. Thus, if Provident is correct that the work
activities can be combined in a single day, then Myers would be able to
alternate among standing, walking, sitting, and driving on a job for nineteen
hours straight without lying down to rest her back. It would be hard for anyone,
let alone someone with a serious back condition, to do that. What Dr. Donnelly
surely meant was that if a job was limited to the designated activity, such as
stand- ing or sitting, then Myers could perform it on a given day for the hours
listed. Thus, Myers could either stand on a job for a total of five hours or sit for
four. There is no indication that Dr. Donnelly meant that Myers could alternate
between standing and sitting on a job for nine hours straight, as Provident
contends. Indeed, Dr. Donnelly's ultimate conclusion was that "given the fact
that[Myers] has recurrent back and leg symptoms, with prolonged walking,
sitting or strenuous activity . . . this patient should continue to be considered
permanently disabled from this problem." Provident also argues that Dr.
Donnelly's conclusion that Myers was "permanently disabled" must be
discounted because it was based on his erroneous assumption that she was only
qualified to work as an x-ray technician. Provident thus contends that Dr.
Donnelly would have said, if Provident had asked the right question, that Myers
could work full time in a sedentary job. Again, Provident misreads Dr.
Donnelly's report. Dr. Donnelly noted that prolonged sitting -- the very thing
required in most sedentary jobs -- aggravated Myers's symptoms. This, among
other factors, led to his conclusion that she was totally disabled.

20

Second, Provident claims that certain statements by Dr. Young, one of Myers's

attending physicians, indicate that she could work in a sedentary job. A review
of these statements indicates that Provident has taken each of them out of
context. Provident notes that in a 1995 report Dr. Young checked a box
indicating that Myers had some capacity for sedentary work. On the same form,
however, Dr. Young reported that Myers was "now disabled" from engaging
either in her regular occupation or in "any other work." Dr. Young added that
Young could not be rehabilitated into any other work. Provident also points to a
1996 letter Dr. Young sent to an orthopedic specialist who was scheduled to see
Myers. Dr. Young wrote, "I am happy to say [Myers] is one of our very best
results [from lumbar instrumentation and fusion] and has little or no pain with
good activity." Provident conveniently overlooks the very next sentence in
which Dr. Young acknowledged that Myers "has never been able to return to
work." Finally, Provident points to Dr. Young's 1996 report in which he said
that Myers had "no pain at this time," but was incapable of "lifting, stooping,
bending, crawling or prolonged standing." This, Provident contends, meant that
Myers could sit or stand while performing a sedentary job. Again, Provident
ignores the thrust of Dr. Young's 1996 report: his diagnosis was "chronic back
pain," and he concluded that Myers remained disabled from working at any
full-time job.
21

Third, Provident argues that Myers's descriptions of her activities and a review
of her x-rays provide evidence to support its decision to terminate her benefits.
As for Myers's activities, Provident points to statements by her or her lawyer
(1) that she could engage in "light activities," specifically, use an exercise bike
and swim, (2) that she could do light housekeeping work, and (3) that she could
do clerical work at home for about two hours a day for her husband's business.
Although Myers did engage in certain light activities, she repeatedly
emphasized to Provident that she needed considerable time each day to rest her
back. Moreover, her lawyer reported to Provident that although Myers
attempted to do clerical work at home for "up to two hours" each morning, "she
must then lie down for an extended rest period before attempting an additional
period of sedentary work in the afternoon." In short, there is nothing in the
statements of Myers or her lawyer that supports Provident's decision. With
respect to Myers's x- rays, Provident spends just three sentences in its brief to
argue that certain x-ray reports provide evidence to support the conclusion that
Myers is capable of sedentary work. This argument is not supported by the
opinion of any doctor. For example, Dr. Donnelly, who examined Myers and
reviewed her x-rays at Provident's request, concluded that she was permanently
disabled.

22

Fourth, Provident argues that additional evidence submitted during the ERISA
Committee review process supported the company's conclusion that Myers was

not disabled from doing sedentary work. Provident points to certain statements
by Dr. Young in 1997. Dr. Young said that Myers had good range of motion in
her back and that "[o]verall, she is doing well with clinical evidence of lumbar
and cervical spondylosis." Provident emphasizes that Young did not say that
Myers was disabled from doing sedentary work. This, however, ignores what
Dr. Young did say in 1997. Dr. Young said that Myers "must limit her standing,
sitting, and driving to one-hour intervals" and that she must lie down for one
hour intervals three times a day. The restrictions noted by Dr. Young in 1997
are entirely consistent with his longstanding opinion that she is totally disabled
from performing any full-time job, even a sedentary one. Finally, Provident
cites the last sentence from the report of its medical consultant, Dr. Dowell,
who said: "A sedentary occupation would be probable" for Myers. This last
sentence must be read in light of what Dr. Dowell said before it. He first said
that Myers "has significant orthopedic limitations" and that "she would be a
good candidate for vocational rehabilitation." These observations led Dr.
Dowell to his last comment, "A sedentary occupation would be probable." Dr.
Dowell appears to be saying that a sedentary position would be probable only
after rehabilitation. After all, Dr. Dowell had before him the reports of three
other doctors who had examined Myers, all of whom said that she was
presently disabled from doing any full-time work.
23

Our review of the record, which we have just detailed, reveals that the process
by which Provident reached its decision to terminate Myers's LTD benefits was
not reasoned and that its decision was not supported by the evidence. See
Booth, 201 F.3d at 344. Provident reached its decision only by misreading
some evidence and by taking other bits of evidence out of context. Reasonably
read, the evidence does not support Provident's conclusion that Myers could
work full time in a sedentary job. The company therefore abused its discretion
when it terminated Myers's LTD benefits on June 2, 1997.2

24

The judgment of the district court entered in favor of Provident and Hercules is
reversed. The case is remanded with the instruction that judgment be entered in
favor of Linda Myers.

REVERSED AND REMANDED

Notes:
1

The Plan provides that a participant's benefits may be reduced if she qualifies
for part-time work at a certain level of earnings. Provident did not attempt to
reduce Myers's benefits on the ground that she could work part time.

Nothing in this opinion prevents Provident from continuing to undertake

periodic reviews of Myers's disability status in accordance with the terms of the
Plan.